COURT OF CRIMINAL APPEAL 269CJA/07

Finnegan J. 

Budd J. 

Gilligan J.

IN THE MATTER OF SECTION 2 CRIMINAL JUSTICE ACT 1993

THE PEOPLE (AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS)

.v.

EOIN BARRY

RESPONDENT

Judgment of the Court (ex tempore) delivered on the 23rd day of June 2008 by Finnegan J.

This is an application by the Director of Public Prosecutions pursuant to section 2 of the Criminal Justice Act 1993 that is an application to this court on the basis that the sentences imposed on the respondent here were unduly lenient.
The respondent was charged with and pleaded guilty to two offences, one of possession of firearms and the other in possession of ammunition contrary to section 27A subsection 1 of the Firearms Act 1964 as substituted by section 59 of the Criminal Justice Act 2006 and section 38 of the Criminal Justice Act 2007.   Each of the offences of which he is charged carries with it a maximum sentence of fourteen years imprisonment.   The effect of the two amendments which I mention under the Criminal Justice Act 2006 and 2007 is that a minimum sentence provision has been introduced in respect of firearms offences.

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Section 59 of the Criminal Justice Act 2006 increases the maximum penalty for firearms offences to fourteen years. The section also imposes a provision in the substituted section 27A subsection 4 requiring the court and imposing sentence to specify a term of imprisonment not less than five years as the minimum term of imprisonment to be served by the person.
The 2007 Act introduced subsection 4A into the substituted provision section 27A. Subsection 4A is unusual in that it sets out the legislative policy to underline that provision in terms that it provides that the purposes of subsections 5 and 6 of section 27A is to provide that in view of the harm caused to society by the unlawful use of possession of firearms the court in imposing sentence on a person for an offence under that provision shall specify the minimum term of imprisonment to be served by the person for a term of not less than five years.
The statutory scheme however where these provisions apply is such that under subsection 5 the court shall take into account a plea of guilty. It will also take into account where there has been a plea of guilty the stage at which the intention to plead guilty was indicated and the circumstances in which the indication was given. Again under subsection 5 the court will take into account whether the person materially assisted in the investigation of the offence. So these are matters that have to be looked at. Under subsection 4A further matters are required to be taken into account by the court. The court may determine or shall impose a five year term unless the court determines that by reason of exceptional and specific circumstances relating to the offence or to the person convicted of the offence it would be unjust in all the circumstances to impose the term of five years imprisonment.
This court has had careful regard to the sentencing hearing in this particular case and is satisfied that the learned trial judge in constructing a sentence in arriving

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at his conclusion as the appropriate sentence had appropriate regard to all the circumstances which he was required to take into account. He properly applied the provisions of the subsections which I have mentioned. His conclusion was that in the absence of any circumstances required to be taken into account pursuant to the provisions of the Act of 2006 and 2007 was that an appropriate sentence having regard to the seriousness of the offence and having regard to the maximum sentence provided for by statute was a term of four years imprisonment. This court is of the view that that term is at the very low range of an appropriate sentence in this case as there are factors which point to the seriousness of the offence. The weapon in question was a hand gun. It has no lawful purpose and it had ammunition with it but having said that the term of four years would ordinarily be within the range of sentences albeit at the bottom end of that range appropriate to the offence.
One then turns to consider the circumstances of this particular case. Firstly there was a plea of guilty. It has been suggested on behalf of the applicant that the plea of guilty should count for very little in this case as the respondent was caught red-handed.  However he did immediately acknowledge his guilt. It has to be accepted also that there were possible defences available to him which could conceivably have succeeded. They were not without hope. By his plea of guilty he enabled the court proceedings to be prosecuted promptly and efficiently with a minimum impact on court time or time in investigation or constructing the case against him. He does merit some consideration therefore for his plea of guilty notwithstanding that it could be said that he was caught red handed. Having had regard to that one then one moves on and takes into account the fact that the plea of guilty was instant and was maintained throughout his interviews with the

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Gardai. It has to be accepted that he materially assisted in the investigation of the offence and that is a matter which also must also be taken into account.
Subsection 4A also permits the court to take into account in sentencing exceptional and specific circumstances relating to the offence. In this case the explanation given by the respondent for his involvement in this offence was duress. He was threatened not just personally but his mother and his siblings, who are younger than him were threatened and that if he did not act as a courier in respect of this weapon that the consequences would be serious for him, his mother and particularly his young sisters. The Gardai accepted this as did the learned trial judge. So this court must also take that into account. Secondly while it may not count for much it was accepted that it was not his intention that he should use the weapon he was a courier which is nonetheless a very serious matter. However the circumstances of duress has to be taken into account in this particular case. Further specific or exceptional circumstances relating to the respondent himself must be regarded. The court of sentence correctly took into account his age, his previous good character and the possibility of rehabilitation.
In all these circumstances this court is satisfied that the allowance against the appropriate sentence of four years made by the particular judge having regard to the term of five years minimum sentence required to be imposed was the correct one and this court does not find that the sentence while lenient was not unduly lenient.
Accordingly the court will dismiss the Director's application.

DPP v Barry